Alberta mom says court unfair to single parents

June 13, 2007

The Canadian Press
EDMONTON (Jun 13, 2007)

An Alberta woman has asked the Supreme Court of Canada to rule on a case that could have sweeping implications on the rights of single parents to make decisions about their families and relationships.

The woman, known as Jane Doe, wants to absolve her common-law husband of legal obligations to her child and has sought leave to appeal her case to the high court.

She became pregnant by artificial insemination with another man's sperm. The common-law couple signed a pre-parenting agreement stating that the husband, John Doe, would not be considered the child's father. Their identities are protected by a publication ban.

In February, the Alberta Court of Appeal ruled against the agreement, saying John Doe will inevitably act in a father's role since he will be living with the child. The mother contends the Alberta ruling failed to recognize her charter rights to make fundamental choices on her child's behalf.

"The existence and scope of a parental liberty right under Section 7 of the charter is of importance to all families, particularly those families which may not fall within the traditional concept of the one-female-and-one-male-parent family," wrote her lawyer, Ronald Robinson, in documents filed with the Supreme Court.

"The current uncertainty in the law ... impedes the ability of parents, including single parents by choice, to make decisions on fundamental importance, and structure their family circumstances without the threat of state-assisted interference in those rights."

Alberta Crown lawyers have filed documents arguing against having the high court hear the appeal, which centres on Alberta's Family Law Act.

The Crown contends the case is not about the constitutional rights of single parents and that Jane Doe is not a single parent by choice because she lives with a male partner.

In the Appeal Court ruling in February, Justice Ronald Berger said the fact that Jane and John Doe remain together demonstrates his intention to act in the role of father.

"Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed? When it stumbles? When the soother needs to be replaced? When the diaper needs to be changed?" Berger asked.

Legal and constitutional experts say the case could have sweeping implications for Canadians and they hope the Supreme Court will hear the appeal.

Brenda Cossman, a family law professor at the University of Toronto, notes the 2001 census said 1.3 million Canadian families were single-parent families, with the vast majority headed by women.

In an affidavit filed in support of Jane Doe's application, Cossman wrote that the number of people choosing to act as single parents is growing, and that more single women between the ages of 30 to 45 are deciding to have children.

The Alberta ruling creates significant women's autonomy and equal rights issues as it assumes women and children economically depend on the men with whom they live, she said.

In an interview, Cossman said it comes down to who is in the best position to make decisions about a child -- a parent or the state.

"The danger is that the court gets to impose what it thinks is best as opposed to what the parents themselves think is best. It completely undermines the idea that individuals should have some autonomy in decision-making in how they structure their family," she said.

Gerald Chipeur, a constitutional lawyer, said Alberta's Family Law Act is too broad because it allows the state, through the courts, to intervene in family decisions even if a child's health, safety or welfare is not at risk.

The Alberta law also treats traditional two-parent families differently than single-parent families, which he said is unfair.

Cossman said the Alberta law could have an impact on court judgments in other provinces.

The end result could have a chilling effect on how single parents live their lives.

"This is a big disincentive to ever getting into a relationship."